Counsel for the petitioners in action number S98935 and the respondents in action number S101566

A. Groves

Counsel for the petitioners in action number S101566 and the respondents in action number S98935

B.F. Schreiber

Date and Place of Trial/Hearing:

December 6 and7, 2006, January 11, 2007, and May 9, 2007,

New Westminster, B.C.

[1]The San Remo Drive subdivision, located in Port Moody, B.C., has an internal conflict. The houses are subject to building schemes and land use contracts, which provide various rules controlling the exterior appearance and the design and materials used on the subdivision homes.

[2]Registration of building schemes is provided for in the Land Title Act R.S.B.C. 1996, c. 250, in s. 220 and 221. It is recognized, however, that conditions change over time, and therefore s. 35(1) of the Property Law Act R.S.B.C. 1996, c. 337, permits applications to modify or cancel a building scheme or restrictive covenant on a number of grounds, only one of which need be established. It is a discretionary matter.

[3]Obsolescence is determined by consideration of the nature of the building scheme itself. The question to ask is: “is it obsolete and is its original purpose still being served?” A more recent turn of phrase asks: “is it still a practical benefit?” It has been put this way as well: “has the character of the neighbourhood undergone so much change that further enforcement would impede the use of the land?”

[4]The developer, H.A. Roberts Group, entered into a land use contract with the City in November 1976, which was eventually registered in March 1977.

[5]On January 1, 1978 a statutory building scheme was registered. The building scheme was registered against 39 of the 40 lots on San Remo Drive, Port Moody. The houses in large part were built between 1977 and 1981.

[6]The building scheme prohibits change to the exterior appearance of the buildings.

[7]The Clarks are the group of owners who say most of the houses have been altered in their exterior appearance over the years and therefore the building scheme is no longer relevant or effective.

[8]The Bertamini group of owners claim that the exterior appearance and design is such that it should be maintained, and there is no difficultly in doing so, therefore the building scheme is still current and not obsolete.

[9]In November 1976, the H.A. Roberts Group subdivided the lands into 40 lots, and in 1977 construction began at the east end of the subdivision at number 535 San Remo Drive, Port Moody.

[10]The building design can be described as having a “California character”. Specifically, two designs were implemented called Del Largo and Catalina with wood stud construction, plywood sheathing with wood architectural features including wood scuppers, exposed timber rafters, stucco exterior, wooden balcony rails with lattice insert, balcony surfaces covered with tar membrane and wood decking, cedar shake roofing, and the like.

[11]As one may anticipate, the California design has not faired well in the rains of British Columbia typical to the interior of the Burrard Inlet at Port Moody. It may be shortly said that on all of the evidence it is plain that preserving the designs against water entry requires meticulous upkeep, otherwise water enters and the wood roots.

1. The Land Use Contract

[12]The developer entered into a land use contract with the City on November 15, 1976, which was registered in the Land Title Office on March 1, 1977.

[13]The first land use contact provided, inter alia, as follows:

…

4. The following terms and conditions shall apply to the said Development area:

(b) Permitted Uses of Land, Buildings and Structures

The following uses and no others shall be permitted:

Forty principal buildings as shown on Drawing Number P-1 for residential use with accessory off-street parking use.

(c) Size, Shape, and Sitting of Buildings and Structures

All buildings and structures to be constructed on the said land shall conform to:

Drawing Nos. P-1 and D-1 to D-10 inclusive

With respect to the size, shape and sitting of the buildings and structures.

(g) Aesthetic Quality of Buildings and Structures

Exterior finishes shall be as shown and described on Drawing Nos. D-4, D-5, D-9, D-10, and as detailed in Schedule A-1.

(h) Development and Landscaping of Site

(i) Landscaping and grading details shall be constructed in conformity with Drawing Nos. L-1, L-2, L-3, and L-4, and shall be carried out and completed in accordance with the standard requirements of the Parks and Recreations Director.

(ii) The installation of ten foot fenced walkway between properties in a location to the discretion of the City Engineer.

(iii) The developer will be required, upon sale of lots adjacent to the walkway, to place a caveat on title that perpetual maintenance of fencing be the responsibility of the purchasers.

(iv) That the fronts of the new lots to be created are to be landscaped to the satisfaction of the Parks and Recreation Director prior to occupancy.

(j) maintenance of the Buildings and Structures

General maintenance of all buildings and structures shall be carried out under a regular programme to assure a continuing pleasing aesthetic appearance, and to provide for the safety of residents in a manner satisfactory to the City Building Inspector.

Should the Owner fail to maintain the said buildings and structures to the satisfaction of the City Building Inspector, the City may at its discretion, order its workmen and/or others to enter and effect such maintenance at the expense of the persons so defaulting and may further order that the charges for doing if unpaid by December 31st of the year of default, shall be added to and form part of the taxes payable in respect of these lands or real property taxes, as taxes in arrears.

(n) Amendments

This land use contract may be amended for minor alteration to plans and specifications by mutual agreement of both parties.

[14]It may be noted that the schedule to the land use contract contained a color schedule for the painting of the stucco, namely:

1. Off White;

2. Beige; and

3. Tan.

[15]Fascia boards and trellis members could be black stained, while infill grills and balcony railings could be mahogany, natural cedar, or another unknown color.

[16]While the original site plans indicated 22 single family homes and 18 semi-detached single family homes, in fact 36 single family homes were built and 4 semi-detached family homes were built. Various other changes were made during the course of construction which have not been the subject of comment, save for the point made by counsel that the land use contract was not observed in a number of different ways, i.e. by plan reversal, by change of style from Del Largo to Catalina and lack of installation of walkways.

2. The Statutory Building Scheme

[17]On January 6, 1978 the developer registered a statutory building scheme P1383 in the Land Title Office against 39 of the 40 lots, lot 203 being excepted.

[18]The building scheme contained a schedule of restrictions prohibiting changes to the exterior appearance of the houses:

…

no principal dwelling building and no other building or structure erected on the lot shall be decorated, maintained, repaired or restoredin such fashion as its exterior appearance is changed from the exterior appearance of such principal dwelling building when first completed….the use of same materials, paint and other furnishes utilized on the outside of the principal dwelling building shall be used as were originally used, or if the same are not then available, such other materials, paint and other finishes that are then available which most closely resemble the same shall be used.

3. Changes 1977-1989

[19]The Clarks note that there were many changes made in size and design, including a new detached Catalina style, additional windows, and the like. In 1982 the owners of 487 obtained approval for a number of changes to the exterior of their house , including relocation of patio doors and windows, relocation of side windows and doors and a new roof deck wall and gutters, without attracting disfavour. The additional windows on the side of the house near the front permitted better views of Burrard Inlet and were approved by council.

4. The Second Land Use Contract

[20]Changes were made to the land use contract by letter from the City of Port Moody, on October 4, 1988. In 1999 the City agreed with 20 of the 40 owners to amend the first land use contract. The second land use contract was registered in 1989 against 20 of the 40 lots only.

[21]In substance, the purpose of the second land use contract was to “regularize” all the exterior alterations that had been made since the buildings were first built and allow for construction of new property amenities.

5. Changes 1989 – 2006

[22]The Clark group noted the following changes occurring over this period:

1. November 21, 1989: Number 477 put glass panels into the balcony;

2. February 1993: Number 487 installed a garage window with new lintel;

4. Undated: Number 471 removed a stucco parapet wall and replaced it with glass and metal railing as did the Clarks at 485;

5. 1996: Number 481 new occupants noted their garage doors, front steps, and front gate had been painted a different color, contrary to the building scheme;

6. The original design and construction of sloped roofs used cedar shakes, but over time those were replaced by various owners with asphalt or duroid shingles or other materials which were noted in photographs of 16 of the San Remo Drive homes.

[23]Further, by reference to the photographs filed in evidence, the Clark Group noted changes to the exterior appearance of the buildings on San Remo Drive, including

a) Replacement of original cedar shakes on sloped roofs with asphalt or duroid shingles;

g) Doors and windows repaired or restored with flashings, awnings, or other overhang elements;

h) Front doors on buildings replaced with doors of various styles and colours;

i) Addition of glass overhangs and enclosures on several houses;

j) Roof deck walls replaced with metal framed glass railings;

k) Replacement of trim or casing around windows and doors;

l) Removal of wood beams over balcony door or front entry;

m) Changes to gates and stairways;

n) Addition of windows;

o) Addition of accessory buildings, window boxes, and doorways;

p) Addition or expansion to principal building by addition or increase in floor area.

6. Changes Made by the Bertamini Group

[24]The Clark group noted the Bertamini group (who seek to retain the building scheme and land use contract provisions) have altered the appearance of a number of their own houses, namely 531, 533, 535, 539, and 481 San Remo Drive, Port Moody. No argument was directed to me to the contrary and indeed most of the comments are borne out by the photographs filed as exhibits. The changes are as follows:

xii. Metal and glass roof added to enclosed balcony space on first floor;

xiii. Additional slider door and windows installed on balcony;

xiv. Removal of portion of rear wall to extend window height.

7. Clark Group Altered Exterior Appearances

[25]The Clark group concede they have made changes to their homes exterior appearances.

[26]Ms. Martin, who lives at 469 Sam Remo Drive, says the various owners over the years have installed three roofs on the house since it was originally built. Now she seeks to make further changes and without same the house will sustain immediate damage. Ms. Martin has consulted with Richard Kadulski and obtained a report dated November 13, 2006: see Martin Affidavit Number 3, Exhibit A (Tab 29).

[27]Mr. Kadulski opens with the following lines:

The house design in this group of homes is not sensitive to the climate. Port Moody is one of the wettest regions in Greater Vancouver, with a rainfall that is almost double that on the south and west side of the GVRD (Vancouver airport precipitation is 1199 mm per year, while in Port Moody it is 1955 mm).